The RIAA wants to keep you from recording digital radio broadcasts!

The following statement was issued by Consumer Electronics Association (CEA) Vice President, Technology Policy Michael Petricone regarding today's action by the Federal Communications Commission (FCC) related to pleas by the recording industry calling for restrictions on home recording of digital radio programs:

"We are pleased the FCC wisely decided today to restrict discussion of digital radio copy protection to a Notice of Inquiry (NOI). We trust that the NOI will lead to a fair and balanced examination of the facts and that in the end the Commission will agree with our position that there is currently no reason or evidence to justify restrictions on the noncommercial home recording of digital radio content. Any consideration of this issue must be approached with great deference to established, fundamental home recording rights.

"The Recording Industry Association of America (RIAA) has entered this debate at the eleventh hour - the standard setting process for digital radio has been underway for over a decade - seeking a government mandate precluding, limiting, or charging for the private, noncommercial home recording of digital radio programs. As we note in a letter sent today to the RIAA, not only has the association failed to meet even the most minimal burden showing that a problem exists, but also has asked the FCC to reject a fundamental consumer right and one that has consistently been given great deference by Congress.

"The RIAA has brazenly suggested that new devices come equipped with a 'buy' button, underscoring their intent to force consumers to buy what they have received for free since Fleming and Marconi first made it possible for consumers to hear news and music over the public airwaves. We have long been concerned about content owners seeking to change the 'play' button into the 'pay' button. At least the RIAA has addressed the semantics of the issue.

"We look forward to working with the Commission through the NOI to closely examine this issue. We strongly hope and believe that the FCC will reject the RIAA's efforts to restrict the noncommercial home recording of digital radio broadcasts."

The full text of CEA's letter to the RIAA follows:

April 15, 2004

Mr. Cary H. Sherman
President
Recording Industry Association of America

Dear Cary,

Thank you for your letter of April 14.

We always look to work in partnership with RIAA, but are puzzled by a number of statements in your letter, as well as your belief that longstanding and legitimate consumer recording practices suddenly pose a threat to your industry.

First, contrary to what you claim, CEA has never refused to meet with the RIAA in a multi-industry context. No such offer has been extended. In fact, I am unaware of any RIAA expression of interest in digital radio, or its technologies, before the January 30 FCC roundtable, although the standard setting process has been underway for over a decade.

Second, you claim that you have "repeatedly" asked the FCC to address the digital radio content protection issue. I was particularly surprised by this, since there is no record of any such communication having been filed in the pertinent FCC docket, which has been open for a long time.

There is also no indication in the docket that you provided the FCC with any basis for jurisdiction over this issue, despite your counsel's suggestion at the roundtable that he might do so. Also, as noted in your letter, there is no content "license" at issue because RIAA members have no licensable right that could be a basis for imposing limitations on free broadcasts.

Finally, you state that you do not wish to limit the ability of consumers to record over-the-air radio broadcasts. Instead, you apparently want to force them to buy what they have received for free since Fleming and Marconi first made it possible for consumers to hear news and music over the public airwaves.

As you know, we have long been concerned about content owners seeking to change the "play" button on our devices to a "pay" button. At least you have addressed the semantics by suggesting new devices come equipped with a "buy" button.

Based on your letter as well as your industry's statements at the FCC roundtable, you appear to be seeking a government mandate precluding, limiting, or charging for the private, noncommercial home recording of digital radio programs. Among other troubling issues, this approach directly contradicts RIAA's January 14, 2003 "Policy Principles on Digital Content" which read in part:

"Technology and record companies believe that technical protection measures dictated by the government (legislation or regulations mandating how these technologies should be designed, function and deployed, and what devices must do to respond to them) are not practical. The imposition of technical mandates is not the best way to serve the long-term interests of record companies, technology companies, and consumers...The role of government, if needed at all, should be limited to enforcing compliance with voluntarily developed functional specifications reflecting consensus among affected interests."

Little more than a year after this statement, you are not only seeking government intervention to limit noncommercial home recording rights, but you are doing so without having met even the most minimal burden of showing that an actionable problem exists.

As you are aware, hundreds of thousands of digital radios have already been sold in Great Britain, yet you offer no proof of harm to the recording industry. Indeed, the various consumer recording practices your letter warns of could be easily accomplished today using commonplace analog radio data service (RDS) technology combined with the digitization of FM broadcasts, but there is no evidence this is occurring. The FCC docket is also devoid of any showing linking digital radio to the unauthorized peer-to peer file sharing of music.

If you are seeking a consensus technical specification or standard with respect to digital radio copy protection, instead of calling for federal mandates the appropriate course would be to devise a technical proposal and work with the appropriate standards bodies.

Where, as here, proposals are preliminary and unfocused, issues often are first aired at the multi-industry Copy Protection Technical Working Group. (CPTWG). You will recall that RIAA initially was a co-chair of this open forum, which is always attended by members of CEA, representatives of HRRC, consumer advocates, and other interested groups and their members.

After establishing the Secure Digital Music Initiative - which apparently did not produce any proposal relevant to your digital radio concerns - RIAA ceased attending the regular CPTWG meetings and has not returned. In fact, the CPTWG was meeting at the very moment you sent your letter, but to my knowledge no one from your organization was in attendance.

In closing, let me again reinforce that non-commercial recording of freely broadcast over the air radio programming is a fundamental consumer right, and one that has consistently been given great deference by Congress. Any discussion of curtailing that right, prior to even the most minimal showing of harm, is ill conceived and premature.

Sincerely,

Gary Shapiro
President and CEO Consumer Electronics Association

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